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BRIEF
IN SUPPORT OF MOTION TO INTERVENE INTRODUCTION
This appeal arises from an order issued
by the Nebraska Department of Natural Resources ("DNR
") without a hearing. At its core, this matter
concerns the fundamental issue now pending before the
Nebraska Supreme Court in Spear T Ranch, Inc., v.
Melvin G. Knaub, et al., Case No. S-03-000789.
In Spear T, the plaintiff seeks to have the
Supreme Court determine whether ground water that is
hydraulically connected to streamflow, is governed by
the prior appropriation doctrine pursuant to Nebraska's
Constitution, Art. XV § 6. Nebraska's natural resources
districts ("NRD") have made substantial investments
in the study, regulation and management of ground water,
including ground water in hydraulic connection to streamflow.
Each of Nebraska' s NRDs has adopted water management
plans that include the management of the water at issue
now before the Court. Each NRD has staff and budgets
specifically dedicated to the management of ground water.
Altering the scope of Neb. Const. Art. XV § 6 to
include the water now within regulatory authority of
the NRDs as advocated by the Appellant, will directly
and adversely impact the existing investments and future
viability of the Coalition's member NRDs.
THE COALITION
MADE EVERY REASONABLE EFFORT TO INTERVENE BEFORE THE
AGENCY.
The Coalition was formed when several
NRDs entered into an interlocal cooperation agreement
pursuant to the Interlocal Cooperation Act, Neb. Rev.
Stat. § 13-801 et seq. The Coalition is presently
comprised of professional, full-time water managers
and includes over 15 NRDs from across Nebraska. The
purpose of the Coalition is "to provide the authority,
resources, services, studies, and facilities needed
for the representation of interests of all members in
proceedings before all agencies, tribunals, courts and
any administrative, legislative, executive, or judicial
bodies concerning or effecting Nebraska's ground water,
its use, its regulation, and its relationship to surface
water. . .". See Certified Copy of Declaration
of Donald G. Blankenau In Support Of Motion to Intervene
And Petition For Hearing, 5, attached hereto and fully
incorporated herein.
During the summer of 2003, the Coalition
became aware that the Appellant filed a document styled
as a "Complaint Against Unpermitted Diversion"
("Complaint") with the DNR. Upon learning
of the Complaint, the undersigned counsel contacted
DNR staff to obtain a copy of that document and to determine
whether a motion to intervene would be permitted at
that time. See Declaration of Donald G. Blankenau, ¶2.
Counsel was advised at that time that the DNR would
not accept any requests or motions to intervene but
that the Coalition would be placed on a list of interested
persons and advised of all future filings and notified
of an opportunity to intervene before final action.
Id. Since that contact, numerous follow-up
contacts were made by Counsel to check the status of
the Complaint. Id. In response to those inquires,
Counsel was advised by DNR staff that the matter was
not scheduled to move forward and that the DNR would
not entertain motions to intervene until notified. Id.
Unfortunately, no such opportunity to
intervene ever arose. On July 1, 2004 the DNR issued
an "Order Dismissing Complaint For Lack of Jurisdiction
To Grant The Relief Requested" ("Order")
without any type of public hearing. At no time was Counselor
any member of the Coalition notified by DNR staff: (1)
of an "Amended Complaint Against Unpermitted Diversions",
(2) that DNR was prepared to accept motions to intervene,
or (3) of issuance of the Order. Id. ¶3.
Upon learning that the DNR issued its
Order, the Coalition filed with the DNR a "Motion
to Intervene, Petition for Hearing, and Declaration
in Support of Motion and Petition" and "Brief
in Support of Motion To Intervene and Petition For Hearing"
on July 12, 2004. Copies of all documents filed with
the DNR by the Coalition have been certified by the
DNR and are attached hereto and fully incorporated herein.
THE COALITION
MEETS THE STANDARD FOR GRANTING THIS MOTION TO INTERVENE.
Nebraska Revised Statute § 25-328
allows "[a]ny person who has or claims an interest
in the matter in litigation. . . in any of the courts
of the State of Nebraska. . ." to join as a defendant.
The interest required for intervention as a matter of
right is a direct and immediate legal interest of such
a character that the intervener will either lose or
gain by the direct operation and legal effect of the
judgment. Colman v. Colman Found., Inc., 199
Neb. 263, 258 N.W.2d 128 (1977).
There is no dispute that the Coalition
and its member NRDs have a significant interest in this
appeal. The Appellant in this case seeks an interpretation
of the Nebraska Constitution that will fundamentally
and permanently change how water is managed in Nebraska.
The consequence of the Appellant's request could result
in numerous Nebraska statutes being declared unconstitutional
and alter the basic authority of NRDs across Nebraska.
Moreover, there is no indication that any of the individuals
with property rights directly at risk was ever notified
by the DNR of the proceeding. Each of these un-named
individuals is, therefore, at risk of having their property
rights deprived without so much as an opportunity to
be heard on the matter. Moreover, none of the NRDs in
Nebraska received notification of this matter or was
allowed to participate even though their regulatory
authority was being directly challenged.
Nebraska Revised Statutes § 61-206
requires the DNR to conduct public hearings on matters
of significant interest. Specifically § 61-206
states, in part, "[DNR] shall have
public hearings on complaints, petitions,
or applications in connection with any of such matters."
(Emphasis Added). Here, the matter ruled on was specifically
styled as a "Complaint". Because the Complaint
directly impacted the Nebraska Constitution, the property
rights of individual landowners, regulatory authority
of other governmental agencies and the future of Nebraska
water law generally, a public hearing with an opportunity
for interested persons to participate was required.
It is important to note that the Coalition
acted to intervene before the DNR in a timely manner.
As previously stated, the Coalition was advised by the
DNR that no motions to intervene would be accepted until
a notice was sent to the public and/or interested parties.
No such notice was ever sent. The DNR, nevertheless,
retained jurisdiction after its Order was issued. Nebraska
Revised Statutes § 61-206 authorizes the DNR to
issue orders without a hearing but requires a hearing
if a party so requests within 15 days of the issuance
of an order. Pertinent portions of § 61-206 state,
"If a decision [by the DNR] is made without a hearing,
a hearing shall be held at the request
of any party to the proceeding if the request is made
within fifteen days after the decision is rendered."
(Emphasis Added). This statutory requirement is reflected
in the DNR's own rules. Nebraska Administrative Code,
Title 454, Chapter 9.001 states, "A person aggrieved
by the action of the Department may, within fifteen
days after such action, file with the Department a petition
for hearing." Accordingly, the Coalition filed
as soon as it reasonably could have filed.
CONCLUSION
The Coalition filed its motion to intervene
and request for hearing 12 days after the issuance of
the sua sponte Order and fully complied with the DNR's
filing requirements. See Motion to Intervene, Petition
for Hearing, and Declaration in Support of Motion and
Petition. Accordingly, the Coalition's filing was timely
before the DNR and is timely here. The Coalition took
all steps necessary to participate before the DNR, but
was still not allowed to be heard. On this basis, the
Coalition's Motion to Intervene should be granted.
Respectfully submitted this 12th day
of August, 2004.
NEBRASKA GROUNDWATER MANAGEMENT COALITION
Donald G. Blankenau, #18528
FENNEMORE CRAIG, P .C.
1221 N Street, Suite 801
Lincoln, NE 68508-2028
Telephone: (402) 323-6200
IN THE COURT OF APPEALS FOR THE STATE OF NEBRASKA
CENTRAL NEBRASKA PUBLIC POWER AND IRRIGATION
DISTRICT
Appellant,
v.
IRRIGATION WELL OWNERS/PLATTE RIVER and PLATTE RIVER
WATERSHED,
Appellees.
Case No. A-04-000836
CERTIFICATE OF SERVICE
The undersigned declares that copies of the foregoing
Motion for Leave to Intervene as Defendant/Appellee
and Brief in Support of Motion for Leave to Intervene
as Defendant/Appellee were sent via First Class United
States mail on this 12th day of August, 2004 to the
following:
Michael C. Klein
Anderson Klein Peterson and Swan
P.O. Box 133
Holdrege,NE 68949-0133
Don Kraus
Central Nebraska Public Power and Irrigation District
P.O. Box 740
Holdrege, NE 68959-0740
Roger K. Patterson
Ann D. Diers
Department of Natural Resources
P.O. Box 94676
Lincoln, NE 68509-4676
Donald G. Blankenau
STATE OF NEBRASKA DEPARTMENT OF
NATURAL RESOURCES
THE CENTRAL NEBRASKA PUBLIC POWER AND
IRRIGATION DISTRICT (Central), P.O. Box 740
Holdrege, NE 68949-0740,
Complainant,
vs.
The persons identified as registered
irrigation well owners located in the Platte River watershed
as listed in the Department of Natural Resources' database
upstream of Central's Diversion Dam,
Respondents
Certificate
I, Barbara L. Hasterlo, Staff Assistant
II, Permits and Adjudications of the Department of Natural
Resources, do hereby certify that the attached documents,
identified as: [1] Motion to Intervene, Petition for
Hearing, and Declaration in Support of Motion and Petition;
[2] Declaration of Donald G. Blankenau in Support of
Motion to Intervene and Petition for Hearing; [3] Brief
in Support of Motion to Intervene and Petition for Hearing;
and [4] Certificate of Service in the above captioned
case is full, true, and correct as the same appears
from the records of the Department.
Signed and sealed this 9th day of August,
2004.
DEPARTMENT OF NATURAL RESOURCES
Barbara
L. Hasterlo
Staff Assistant II
Nebraska Department of Natural Resources
P.O. Box 94676
Lincoln, NE 68509-4676
Telephone: (402) 471-0591
STATE OF NEBRASKA DEPARTMENT OF
NATURAL RESOURCES
In the Matter of Central Nebraska Public
Power and Irrigation District (CNPPID),
Complainant,
v.
The persons identified as registered
Irrigation well owners located in the Platte River watershed
as listed in the Department Of Natural Resources' database
upstream of CNPPID's Diversion Dam,
Respondents.
Comes now the Nebraska Groundwater
Management Coalition ("Coalition") pursuant
to the Nebraska Administrative Code, Title 454, Chapter
4, § 001.02 and hereby moves the Department of
Natural Resources ("DNR") for leave to intervene
as a party defendant in the above captioned matter.
This motion is timely filed and fully satisfies the
requirements of Neb. Rev. Stat. § 25-328. In support
of this motion, the Declaration of Donald G. Blankenau
is attached hereto and fully incorporated herein.
Pursuant to the Nebraska Administrative
Code, Title 454, Chapter 9, § 001, the Coalition
further petitions the DNR for a hearing to reconsider
the Order Dismissing Complaint For Lack of Jurisdiction
To Grant The Relief Requested ("Order"), dated
July 1, 2004, and issued in the above captioned matter.
In support of this Petition, the Coalition submits the
Declaration of Donald G. Blankenau which is attached
hereto and fully incorporated herein. The Coalition
further states that it is aggrieved by the action of
the DNR in issuing the Order because such action limited
the analysis regarding the key legal issue in this proceeding.
In so doing, the DNR has placed at risk the regulatory
authority of the Coalition's member NRDs and denied
them an opportunity to present a complete analysis for
purposes of appeal.
Wherefore, the Coalition respectfully
requests the DNR to grant the motion to intervene and
the petition for hearing.
Respectfully submitted this 12th day
of July, 2004.
NEBRASKA GROUND WATER MANAGEMENT COALITION
Donald G. Blankenau
FENNEMORE CRAIG, P .C.
1221 N Street, Suite 801
Lincoln, NE 68508-2028
Telephone: (402) 323-6200
Facsimile: (402) 323-6210
STATE OF NEBRASKA
DEPARTMENT OF NATURAL RESOURCES
In the Matter of Central Nebraska Public
Power and Irrigation District (CNPPID),
Complainant,
v.
The persons identified as registered
Irrigation well owners located in the Platte River watershed
as listed in the Department Of Natural Resources' database
upstream of CNPPID's Diversion Dam,
Respondents.
DECLARATION OF DONALD G. BLANKENAU IN
SUPPORT OF MOTION TO INTERVENE AND PETITION FOR HEARING
I, Donald G. Blankenau, am over 18 years of age and
have personal knowledge of the matters contained herein
and swear to the following:
1. On or about June 9, 2003, I learned
that the Central Platte Public Power and Irrigation
District ("CNPPID") filed a document styled
as a "Complaint Against Unpermitted Diversions"
("Complaint") with the Nebraska Department
of Natural Resources ("DNR"). The Complaint
essentially asked that, among other things, the DNR
issue an order to all persons with registered irrigation
wells upstream of CNPPID's Diversion Dam, to cease diversions
of ground water. The purpose of the Complaint was to
seek a legal determination by the DNR as to whether
certain ground water is subject to the prior appropriation
doctrine that governs the use of surface waters pursuant
to Neb. Const. Art. XV, § 6. The ground water at
issue in the Complaint is presently being regulated
by Nebraska's natural resources districts ("NRDs").
2. During the summer of 2003, I contacted
the DNR staff responsible for processing and reviewing
applications and complaints to request a copy of the
Complaint. I also asked whether interested persons would
be allowed to file a motion to intervene in the proceeding
at that time. I was provided a copy of the Complaint
and advised that the DNR would not accept any requests
or motions to intervene at that time. I was also told
that I would be placed on a list of "interested
parties" and advised of all future filings and
notified of an opportunity to intervene before the DNR
acted on the Complaint. Since the summer of 2003, I
contacted the DNR on numerous occasions to detennme
the status of the Complaint. In response to those inquires,
I was advised by DNR staff that the matter was not scheduled
to move forward and that the DNR would not entertain
motions to intervene until such time as I was notified.
3. At no time was I notified by DNR
staff: (1) of CNPPID's "Amended Complaint Against
Unpermitted Diversions" filed with the DNR on May
3, 2004; (2) that DNR was prepared to accept motions
to intervene; and (3) of the "Order Dismissing
Complaint For Lack of Jurisdiction To Grant The Relief
Requested" ("Order") dated July 1, 2004.
I received a copy of the Order only after I learned
from other persons that it had been issued and upon
my personal request to the DNR.
4. The Order has statewide implications
and is likely to be reviewed by the Nebraska Court of
Appeals and/or Nebraska Supreme Court. Among the implications
to be considered will be the regulatory authority of
NRDs regarding the use of ground water. If the Order
is reversed or modified on appeal, the rules and regulations
of the NRDs that govern ground water use across the
state may be rendered invalid or significantly impaired.
As a consequence, NRDs may not only be faced with a
significant reduction in regulatory authority, but will
likely face challenges to their taxing authority, issues
related to staff retention, and issues regarding future
and past ground water data collection and retention.
5. On or about July 7, 2003 the Nebraska
Ground Water Management Coalition ("Coalition")
was formed when several NRDs entered into an interlocal
cooperation agreement ("Agreement") pursuant
to the Interlocal Cooperation Act, Neb, Rev. Stat. §
13-801 et seq. The Coalition is presently comprised
of professional, full-time water managers and includes
over 15 NRDs from across Nebraska. The purpose of the
Coalition is "to provide the authority, resources,
services, studies, and facilities needed for the representation
of interests of all members in proceedings before all
agencies, tribunals, courts and any administrative,
legislative, executive, or judicial bodies concerning'
or effecting Nebraska's ground water, its use, its regulation,
and its relationship to surface water, to inform and
educate the public concerning ground water and the effects
and impacts of any proposed changes on the people and
resources of the State of Nebraska and pursue such other
activities concerning such other matters related to
ground water in Nebraska as determined by the Coalition."
Agreement, ¶3.
6. I have been an attorney admitted
to practice in Nebraska since 1987. Since 1991, my practice
has primarily focused on water law and policy. I was
hired to serve as legal counsel for the Coalition upon
its formation. In accordance with instructions I received
from the Coalition, I have provided the foregoing information
to the DNR with the express intention to allow the Coalition
to intervene as a party defendant to the present matter.
The Coalition desires to participate as a party in an
effort to develop a complete record that will allow
Nebraska's appeals courts to fully and fairly consider
the issues that arise from the DNR's decision. The Coalition
and its individual member NRDs will be directly affected
by the final resolution of this matter and desire full
party status.
I declare under penalty of perjury that
the foregoing is true and correct.
Date - July 12, 2004
Donald G. Blankenau
STATE OF NEBRASKA
DEPARTMENT OF NATURAL RESOURCES
In the Matter of Central Nebraska Public
Power and Irrigation District (CNPPID),
Complainant,
v.
The persons identified as registered
FOR HEARING Irrigation well owners located in the Platte
River watershed as listed in the Department Of Natural
Resources' database upstream of CNPPID's Diversion Dam,
Respondents.
BRIEF IN SUPPORT OF MOTION TO INTERVENE
AND PETITION
In support of its motion to intervene
and petition for hearing, the Nebraska Ground Water
Management Coalition ("Coalition") respectfully
submits the following:
MOTION TO INTERVENE
As defined by the Nebraska Administrative
Code, Title 454, Chapter 1 § 006, the Coalition
is a person under the rules governing agency actions
before the Department of Natural Resources ("DNR").
NAC Title 454 Chapter 4 § 001.02 governs participation
in DNR hearirigs and provides a two-part test for the
DNR to consider. That rule states, in pertinent part:
"A person may become a party to a proceeding when.
. . [t]he person files a request to be made a party
to the proceeding and meets the requirements of §
25-328, R.R.S. of Nebraska.
In this case, the Coalition satisfies
both requirements. The Coalition has filed a request
to become' a party as evidenced by its motion to intervene
in this matter. As for the second requirement, Neb.
Rev. Stat. § 25-328 states, in pertinent part,
"Any person who has or claims an interest in the
matter in litigation, in the success of either of the
parties to an action, or against both, in any action
pending or to be brought in any of the courts of the
State of Nebraska, may become a party to an action.
. . ." Id. The Coalition satisfies the
second part of the test because its member NRDs will
be directly and irreversibly impacted by the resolution
of the matter before the DNR. The Declaration filed
with the Coalition's motion to intervene, states that
the Order issued by the DNR "has state-wide implications
and is likely to be reviewed by the Nebraska Court of
Appeals and/or Nebraska Supreme Court. Among the implications
to be considered will be the regulatory authority of
. . . [NRDs] regarding the use of ground water. If the
Order is reversed or modified on appeal, the rules and
regulations of the NRDs that govern ground water use
may be rendered invalid or significantly impaired. As
a consequence, NRDs may not only be faced with a significant
reduction in regulatory authority, but will likely face
challenges to their taxing authority, issues related
to staff retention, and issues regarding future and
past ground water data collection and retention."
Declaration at ¶4.
The interest required for intervention
as a matter of right is a direct and immediate legal
interest of such a character that the intervener will
either lose or gain by the direct operation and legal
effect of the judgment. Colman v. Colman Found.,
Inc., 199 Neb. 263, 258 N.W. 2d 128 (1977). The
implications of the present matter on NRDs cannot be
denied The Coalition's members manage ground water through
the authority granted them by the Legislature. This
matter attacks that authority on a Constitutional basis.
The very foundation of Nebraska's water laws is at issue
here. These implications demonstrate an interest that
plainly satisfies the standard set forth in Neb. Rev.
Stat. § 25-328. Accordingly, intervention should
be granted.
It is important to note that the Coalition
acted to file its motion in a timely manner. As evidenced
in the Declaration, the DNR advised the undersigned
attorney that persons would be notified when the DNR
intended to act and that they would be allowed to seek
intervention at that time. Despite these assurances,
no such notification was ever provided to the Coalition.
Indeed, the Coalition did not even receive notice of
the July 1 Order from the DNR. As a result, the Coalition
filed its motion to intervene at the earliest opportunity.
As an aside, it should be noted that
although the matter has been dismissed, the DNR retains
jurisdiction of the case until such time as a party
files a notice of appeal or the period from which an
appeal may be taken has passed. In this case, no party
has filed a notice of appeal nor has the time within
which to file an appeal run. Therefore, the DNR retains
authority to grant intervention at this time.
PETITION FOR
HEARING
In order to create a complete record
for review upon appeal, the Coalition filed its petition
for hearing. Nebraska Administrative Code, Title 454,
Chapter 9, § 001 governs such petitions and provides:
"A person aggrieved by the action of the Department
may, within fifteen days after such action, file with
the Department a petition for hearing." Id.
As noted in the previous section, the Coalition is a
"person" within the definitional meaning provided
for in Title 454, Chapter 1, § 006.
The Coalition is aggrieved by the action
of the Department because such action limited the analysis
regarding the critical legal issue behind the Complaint.
This limited analysis renders the Order vulnerable to
attack upon appeal and thereby places at risk the ground
water management rules in place throughout the state.
If the petition for hearing is granted, the Coalition
will present evidence concerning: (1) the administrative
history of the DNR regarding ground and surface waters;
(2) historical review of the laws governing ground water
use in Nebraska; and (3) the social and economic impacts
of regulating ground water in accordance with the prior
appropriation doctrine. By allowing the Coalition to
participate as a party, they can present legal analysis
that will place it in a better position to defend the
regulatory authorities of the member NRDs.
Granting the petition for hearing will
also fulfill the commitment of the DNR to honor the
request of the Coalition to participate in any administrative
action regarding this issue. In the interests of justice
and fairness, the timely petition for hearing should
be granted.
CONCLUSION
The Coalition seeks to defend the duties
placed upon its members by the Legislature. Certainly
if the legal authority of the DNR was being placed at
risk, employees being faced with job loss, and funding
vanishing, the DNR would and should be allowed to participate
as a party. That is all the Coalition seeks. For the
foregoing reasons, the DNR should grant the Coalition's
motion to intervene and its petition for hearing.
Respectfully submitted this 12th day
of July, 2004.
NEBRASKA GROUND WATER
MANAGEMENT COALITION
Donald G. Blankenau
FENNEMORE CRAIG, P .C.
1221 N Street, Suite 801
Lincoln, NE 68508-2028
Telephone: (402) 323-6200
Facsimile: (402) 323-6210
STATE OF NEBRASKA
DEPARTMENT OF NATURAL RESOURCES
CERTIFICATE OF SERVICE
In the Matter of Central Nebraska Public
Power and Irrigation District (CNPPID),
Complainant,
v.
The persons identified as registered
Irrigation well owners located in the Platte River watershed
as listed in the Department Of Natural Resources' database
upstream of CNPPID's Diversion Dam,
Respondents.
The undersigned declares that copies
of the foregoing Motion To Intervene, Petition For Hearing,
And Declaration In Support Of Motion And Petition; Declaration
Of Donald G. Blankenau In Support Of Motion To Intervene
And Petition For Hearing; and Brief In Support Of Motion
To Intervene And Petition For Hearing were mailed, postage
paid, via first class U.S. Mail on this 12th day of
July, 2004 to the following:
Central Platte Public Power and Irrigation
District
P.O. Box 740
Holdrege, NE 68949-0740
Michael C. Klein
417 East Avenue
P.O. Box 133
Holdrege,NE 68949-0133
Copies of said documents were also sent,
via facsimile, to Michael C. Klein at (308) 995-8607.
Donald
G. Blankenau |
